GOVERNMENT BY LAWYERS. 

ADDRESS BY SV D.'-’THOMPSON. 

i| 


Reprint from American Law Review, 


Sept.-Oct., 1896. 









672 


30 AMERICAN LAW REVIEW. 


iG*' ■' 

GOVEKNMENT BY LAWYERS.* 

In the ruder stages of human development the offices of 
military leader, legislator, magistrate, priest, and physician, are 
often united in one person; of which we see instances in the 
Angekok of the Esquimaux, and the medicine-man of our 
native tribes. As mankind progresses in its development, each 
of these offices becomes more complicated and requires for its 
ministry a longer study, a more patient application, and a more 
varied experience; each, therefore, demands for its successful 
prosecution, all the time and strength of its incumbent; and in 
the general division of labor and exertion, each falls to the lot 
f single individuals, who, in time, form a separate class in the 
oody politic. In the public opinion of vital nations, the general, 
the man whose skill and courage leads the people to military 
successes, stands first in the public estimation: it is only in de¬ 
caying civilizations, like that of China, that the scholar is pre¬ 
ferred before the soldier. Next in importance to the soldier, in 
every vital State, stands the lawyer, the man who makes, 
expounds, and administers the laws. Behind him, with hourly 
diminishing importance, comes the priest, the clergyman, the 
man whose profession is supposed to concern our relations with 
the eternal world; a profession which, though in past ages 
clouded with superstition and stained with crime, has been ren¬ 
dered luminous with a long array of saints, martyrs, and 
philanthropists. A subdivision of the same profession, from 
the condition which it occupied in the ealier stages of human 
development, brings immediately behind him that profession 
which, though perhaps the least obtrusive, is not the least useful 
of any, which abounds in noble and gifted men, whose whole 
lives, careless of gain and of self, are devoted with disinterested 

^ An address delivered by Seymour 30, 1896. See this address referred to 
D. Thompson before the Bar Associa- in our department of ‘‘ Notes ” in this 
tion of Texas, at Galveston, on July number.— Eds. Am. Law Rev. 


GOVEKNMENT BY LAWYERS. 


673 


zeal to the advancement of human knowledge and the mitigation 
of human suffering. 

In the monarchical stages of government, the first and third of 
these professions, that of the soldier and the priest, have com¬ 
bined to tyrannize and oppress mankind; and the human family 
have been weighted down for ages by a double tyi’anny which it 
has seemed impossible to lift,—the terrors of superstition and 
the power of the sword. Government by the priest alone has 
been long endured by mankind, and has not been found the worst 
of human government. Laws based upon religion, and religion 
associated with morals and with justice, and justice administered, 
as in the Jewish Sanhedrim, in the presence of God himself, and 
consequently without the aid of lawyers, have been, in ruder 
ages, a much more tolerable kind of government than the mere 
caprice of the sword. But when the priest forgot the sancti¬ 
ties of his holy office, and lent himself to the aid of the military 
despot, mankind discovered that the most grievous of all govern¬ 
ments, the hardest to be borne, and the hardest to shake off, 
was a government of the soldier and the priest combined. 

You men of Texas conquered your liberties from such a gov¬ 
ernment; and in your Declaration of Independence, adopted on 
the second day of March, 1836 — a day which ought forever to 
be a sacred holiday in Texas— you emphasized your unalterable 
opposition to such a government, in language that will go sound¬ 
ing down the ages. You charged that ‘the Federal republican 
constitution of your then country — that is, of the Republic of 
Mexico — which you had sworn to support, no longer had a 
substantial existence ; that the whole nature of your government 
had been forcibly changed, without your consent, from a 
restricted, federative republic, composed of sovereign States, to 
a consolidated, central military despotism, in which every inter¬ 
est was disregarded but that of the army and the priesthood, 
both the eternal enemies of civil liberty, the ever-ready minions 
of power, and the usual instruments of tyrants.’ ^ You charged 
that the Mexican nation, in the late changes made in the gov¬ 
ernment by General Antonio Lopez de Santa Anna, who, having 

1 Declaration of Independence of general convention at Washington, 
the Republic of Texas, adopted in the Texas, on March 2d, 1836. 

VOL. XXX. 43 


674 


30 AMERICAN LAW REVIEW. 


overturned the constitution of his country, now offered you as the 
cruel alternative, either to abandon your homes, acquired by so 
many privations, or to submit to the most intolerable of alltyranny, 
the combined despotism of the sword and the priesthood.^ You 
arraigned the Mexican government for denying to you the right 
of worshiping the Almighty according to the dictates of 3 ^our 
consciences, by the support of a national religion, calculated to 
promote the temporaiy interest of its human functionaries, 
rather than the glory of the true and living God.^ For these 
and other enumerated grievances you Texans, by that immortal 
instrument, severed your political connection with the Mexican 
nation, declared yourselves to be a free-mid independent repub¬ 
lic, and, ‘ conscious of the rectitude of your intentions, you 
fearlessly and confidently committed the issue to the Supreme 
Arbiter of the destiny of nations.’ 

That great first charter of your liberties was undoubtedl}^ 
drawn by the hand of a lawyer.The members of the legal 
profession, always conspicuous as public leaders, played a most 
important part in jmur struggle for independence. They 
commanded your companies, your regiments, and your expedi¬ 
tionary forces. Sam Houston, who commanded your Armj^ of 
Liberation on the field of San Jacinto, where you defeated 
and took prisoner the Mexican Dictator, and finally achieved 
your independence, — was a lawyer no less than a soldier. Nor, 
after you had achieved your independence, were you unmindful 
of the legal profession in bestowing civic honors. Fourteen of 
your counties are named for distinguished judges. Shall I call 
that roll of honor? Their names are Collingsworth, Donley, 
Ector, Gray, Handsford, Hemphill, Hutchinson, Lipscomb, 
Mills, Ochiltree, Oldham, Wheeler, Wilson, Winkler. A 
still greater number, perhaps, bear the names of distinguished 
lawyers who never ascended the judicial bench, but who rendered 
important services to their country in its struggle for independ¬ 
ence, and in its subsequent political development. In your last 
legislature, in a House of Representatives composed of 128 

1 Ibid.j § 3. s It was drawn by George G. Chil- 

2 Ibid., § 12. dress, after whom Childress County, 

in the State of Texas, is named. 


GOVERNMENT BY LAWYERS. 


675 


members, 51 were lawyers. In a Senate composed of 31 mem¬ 
bers, 22 were lawyers. And your Governor, Secretary of State, 
Attorney-General, Railroad Commissioners, and Land Office 
Commissioner, are all lawyers. 

These digressions into historical facts, wffiich have a pecu¬ 
liar and tender meaning for you Texans, will serve to illus¬ 
trate the dual truth that no species of human government 
is more oppressive and more odious than the combined govern¬ 
ment of the priest and the soldier; and that lawyers, among our 
race at least, always play a conspicuous part in struggles for 
liberty. Lawyers have always been an inconvenience to des¬ 
pots. The tyrant is continually stumping his toe against the 
lawyer. Napoleon, the son of a lawyer, hated lawyers. When 
he first conspired to overturn the government of France, to 
drive out the legislature, and to make himself master of the 
liberties of his country, his proposition to his military co-con¬ 
spirators was to clean out the lawyers. 

Shall I extend this field of illustration ? The Magna Charta, 
which the barons extorted from King John at Runnimede, was 
undoubtedly written by lawyers. It >vas a lawyer who first, in 
our ancestral country, disputed the doctrine that the king was 
above the law, and whose undaunted courage gave us that 
second charter of liberty, the Petition . of Right.^ It must 
have been a lawyer who drew the celebrated Habeas Corpus 
Act. It must have been a lawyer who drew the celebrated 
statute, 1 Wm. and Mary 1, which settled the succession of 
the crown on its modern basis and declared the rights of the 
subject,— a statute from which the first eight anJendments to 
the Federal constitution, placed there through the influence of 
Mr. Jefferson, were drawn, and whose essential provisions are 
embodied in the Declaration of Rights in every American State 
constitution. It was a lawyer who drew the Declaration of 
Independence, promulgated by the Congress of the thirteen 
British North American colonies on the Fourth of July, 1776.- 

1 Sir Edward Coke. court reporter; and “Jefferson’s Re 

2 Thomas Jefferson, the author of ports,” a small volume, will repay 
that immortal instrument, was not perusal by the learned and curious, 
only a lawyer, but, iu a small way, a 


676 


30 AMERICAN LAW REVIEW. 


It was Gambetta, a lawyer, who proclaimed the present French 
Republic in 1870. If the convention which framed the consti¬ 
tution of the United States, at once the greatest and the briefest 
political code that was ever written,— the greatest instrument, 
as was said by Mr. Gladstone, that was ever thrown off at a 
dash, so to speak, by the hand of man,— if that convention 
was presided over by a soldier, we have the testimony of 
‘‘ Elliott’s Debates ” for the conclusion that its work was. almost 
entirely the work of lawyers. And it may be truly said that 
that remarkable instrument, which established a government 
acting directly upon the people, which committed to the general 
government those matters which could not be safely or con¬ 
veniently left to the separate States, and which reserved to the 
separate States those liberties which could not be safely or con¬ 
veniently surrendered to the general government,—was the work 
of a collection of able and patriotic lawyers of that early day, 
who proceeded without model and almost without precedent. 
The same is true of all our State constitutions: they have been 
eminently the work of lawyers. While agriculture, commerce, 
manufactures, the arts, and literature have all been to some 
extent represented in our constitutional conventions, yet the 
representatives of these interests have occupied positions 
entirely subordinate to the positions occupied by the lawyers,— 
positions analogous to that of lay judges in Pennsylvania and 
New Jersey: they were there to be consulted on questions of 
fact merely, and were to nod their heads when the lawyers spake. 

Our Federal constitution was, as I have said, almost exclu¬ 
sively the work of lawyers. But it would have been destitute 
of all symmetry, and would have been but partially efficacious, 
if its interpretation had been left to the irregular and turbulent 
action of legislative bodies. It became, then, unavoidably 
necessary that its authoritative and final interpretation should 
be committed to that department of the government which, by 
reason of its learning, its open, orderly, and dignified methods 
of procedure, its habit of hearing argument in all cases before 
deciding, and of publishing the reasons for its decisions,— but, 
above all, by reason of the independence of its members from 
the other branches of the government, and even from the peo- 


GOVERNMENT BY LAWYERS. 


677 


pie themselves,—because of the permanency of the tenure of 
their offices,— was alone suited to the performance of so great 
a task. It is true that the office of supreme interpreter of the 
constitution was never, by that instrument itself, committed to 
the Supreme Court. On the other hand, the little in the con¬ 
stitutional convention on the subject which has come down to 
us indicates a purpose to withhold it.^ But the office was im¬ 
posed upon the court by an overwhelming and unavoidable 
logic. Its judges were, in conformity with the constitutional 
mandate, sworn to support the constitution, and they were not 
sworn to support acts of Congress. Whenever, therefore^ in the 
exercise of their granted jurisdiction, they might be driven to 
a choice between upholding an act of Congress and upholding 
the constitution, their oaths of office, prescribed by the con¬ 
stitution itself, obliged them to uphold the latter. More¬ 
over, the constitution was a most solemn instrument, which 
did not become binding until ratified by three-fourths of the 
States; nor could it be amended without the consent of a like 
proportion of the States. But how trivial would the instru¬ 
ment have become if it could have been amended, or in part 
repealed, or disregarded, by a bare majority of the two houses 
of Congress, with the concurrence of the executive, in times of 
turbulence or popular excitement. The duty of the court, then,' 
although never expressly enjoined upon it, when exercising its 
regular and proper jurisdiction, to refuse to enforce an act of 
Congress, or an act of a State legislature, which is plainly 
opposed to the national constitution, seems as unavoidable 
as a syllogism in logic or a theorem in geometry. This 
power on the part of the judicial branch of the govern¬ 
ment to set aside unconstitutional acts of legislation was not 
assumed without challenge; nor was it assumed for the 
first time by the Supreme Federal Tribunal: several State 
decisions asserted the power prior to the time when it was de¬ 
clared to exist by the Supreme Court of the United States in the 
case of Marhury v. Madison? The exercise of the power, hav- 

1 See an article on this subject by ^ See an instructive article by Rob- 
Gov. Pennoyer, in 29 Am. Law Rev. ert Ludlow Fowler, 29 Am. Law Rev. 
856. 711, 722. 


678 


30 AMERICAN LAW REVIEW. 


ing been vindicated by Chief Justice Marshall in that celebrated 
case, in language which, although possibly obiter^ stands to this 
day unanswered and unanswerable, was asserted in turn by the 
highest judicatories of the States; and it has become so firmly 
embodied in our American constitutional jurisprudence, that 
it is not likely to be disturbed at any near period in the future. 


An obvious abuse of the power has exacted more attention and 
deserved more reprobation. One of the fundamental conceptions 
of our national constitution was an entire independence of the 
three departments of the government, each from the control or 
V influence of the others. Following the doctrines of 

the framers of that instrument sought in that way to create 
a government of checks and balances, taking the just view that 
such a government would be more favorable to liberty. The 
legislative power was committed to the two houses of Congress, 
with a limited concurrence on the part of the executive. The 
appointment of public officers and the conduct of foreign rela¬ 
tions were committed to the concurrent action of the President 
and the Senate. The administration of public and private jus¬ 
tice was vested in the Judiciary. To remove this branch of gov¬ 
ernment, as far as possible, from the control of the other two, 
the judges were to be appointed during good behavior and their 
compensation was not to be diminished during their terms of 
office.^ Beyond all question, it was intended to divide the pow¬ 
ers of government into three independent departments, working 
in harmony, mutually supporting each other, and yet each inde¬ 
pendent of the others. This plan has been imitated in all our 
State constitutions; it has been imitated in the constitution of 
the federative republic which lies on our Southern border; and if 
there is anything which may be said to be axiomatic in American 
constitutional law, it is the proposition that neither of the three 
departments of government can rightfully interfere with the 
workings of either of the others.^ It is to be profoundly re¬ 
gretted that this salutary principle was first violated by the 


^ Const. U. S. Art. 3, § 1. this subject in Kilbourn v. Thompson, 

2 See the striking language of the 103 U. S. 168, 190, et seq. 

Supreme Court of the United States on 



GOVERNMENT BY LAWYERS. 


679 


judicial department in the case of MarburyY. Madisoyi,'^ already 
referred to. The power was there asserted on the part of the 
judicial branch of the government to direct coercive process 
against officers of the President’s cabinet — in effect against the 
President himself—to compel the doing of acts that were regarded 
as ministerial merely. The Supreme Court, while disclaiming such 
jurisdiction for itself,— since, with certain limited exceptions, 
it had appellate jurisdiction onty,— asserted it for the inferior 
Federal judicatories; and its exercise was attempted by them, 
but was successfully resisted by President Jefferson, and, in my 
judgment, rightfully resisted. But, following the doctrine of 
this decision, or rather of this extra-judicial fulmination,— for 
the court had really nothing to decide except its own want of 
jurisdiction to decide anything, — the State judicatories have, 
almost without exception, asserted the power to control the action 
of the executive department of their State governments in what 
are called ministerial matters, that is, matters which do not in¬ 
volve the exercise of an exclusive discretion, by sending writs of 
mandamus to the heads of executive departments, and even in 
some instances, to the Governor himself. It is true that no 
Federal judicatory has yet sent its writ of mandamus or of 
certiorari to the President of the Senate, or to the Speaker of the 
House of Representatives: that is yet to come, in the manifest 
and steady progress of usurpation. The Federal judiciary have 
found other means with which to lay their coercive hands upon 
the legislative department of the government, even to the extent 
of restraining the houses of the National Legislature in the just 
exercise of their powers. 

Within a recent period we have seen and applauded the 
coercion of the House of Representatives of the United 
States by an action at law brought against its Sergeant- 
at-Arms in a local court of the District of Columbia, to recover 
damages for a false imprisonment, consisting in the mere fact 
of an arrest by that officer under a warrant issued by the Speaker 
of the House in compliance with a resolution of the House, to 
compel the attendance and coerce the testimony of a recusant 


1 1 Cranch. 137. 


680 


30 AMERICAN LAW REVIEW. 


witness, in a case where it was sought to investigate an alleged 
fraudulent bankruptcy of a debtor to the United States.^ Instead 
of resisting an encroachment by another branch of the govern¬ 
ment upon powers which had belonged to each of the houses 
of the British Parliament time out of mind,—which were always 
regarded as a part of the lexparliamenti or common law of Par¬ 
liament, and which had been inherited by the two houses of our 
National Legislature, the Senate, instead of asserting its right 
to punish a contempt against its own dignity and authority, 
tamely remitted the vindication of its dignity and honor to a 
prosecution by indictment in a local court of the District of 
Columbia.^ The spectacle was no less than that of witnesses 
who had refused to testify before an investigating committee 
of the American Senate, in a case where it was alleged that 
senators had been bribed and corrupted by the so-called Sugar 
Trust, being prosecuted for their recusancy, as for a crime, 
before a local and inferior Federal judicatory. A few more 
such arrogant encroachments by the judicial upon the legisla¬ 
tive branch of the government, and a few more such shameful 
submissions, would reduce the National Legislature to such a 
depth of degradation and pusillanimity that, to quote from a 
celebrated judicial opinion,^ “ its blazonry might well be a cap 
and bells and pointless spear.’’ 

Instances of the encroachments by the judicial upon the 
executive power, equally bold and less honest, are dis¬ 
covered in the practice which was invented and successfully 
applied in Dodge v. Wolsey,^ of a stockholder in a corpo¬ 
ration bringing a collusive suit against the directors to com¬ 
pel them, by judicial process, to refrain from doing what 
both parties wanted to avoid doing, the complying with a 
revenue law of a State; and in a case never to be mentioned 
without regret, this device was successfully resorted to for the 
purpose of overthrowing a revenue law of the United States.® 


1 Kilbourn v. Thompson, 103 U. S. 
168. 

2 Chapman v. United States, 5 App. 
Cas. (D. C.) 122. 

8 Munn V. People, 69 Ill. 90, 92. 


4 18 How. (U. S.) 331. 

* Pollock V. Farmers’ Loan &c. Co., 
157 U. S. 429; s. c. on rehearing, 158 
U. S. 601. 


GOVERNMENT BY LAWYERS. 


681 


In these and other like cases the profession that the object of 
the suit was to restrain the directors from complying with an 
unconstitutional revenue law was a mere pretense; the spectacle 
of an adversary litigation was an equal pretense; both the com¬ 
plaining stockholder and the defendant directors desired the 
same thing; and that result, thus accomplished, was nothing 
less than the enjoining of the executive branch of the govern¬ 
ment, State or Federal, from collecting revenue which might be 
vital to the existence of the State or nation. 

It is said that a good judge will amplify his own jurisdiction. 
This maxim may well be challenged. A judge occupies a public 
trust, or a public agency, and he is, like any other trustee or agent, 
entitled to wield only those powers which have been conferred upon 
him by a just and proper interpretation of the instrument creating 
the trust or agency. The true meaning of the maxim is that a 
good judge will amplify remedies to the end of doing complete 
justice. Men are greedy of power; judges are but men; judges 
are therefore greedy of jurisdiction. The known tendency of 
all courts is to amplify their own jurisdiction. The court which 
assumes without challenge, to judge finally and exclusively, not 
only of the extent of its own powers, but also of the extent of 
the powers of both of the other branches of the government, 
may well challenge attention. So long as this right is acquiesced 
in, we shall witness the spectacle of Federal judicatories con¬ 
tinually enlarging their own powers, by successive encroach¬ 
ments upon the corresponding powers of the legislative and 
executive branches of the general government, and of all branches 
of the State governments. 

To promote this expansion of power, we have seen the 
legislature of a State prohibited from repealing a public grant, 
got from its predecessors by the most notorious corruption.^ 
We have seen the legislature of a State prohibited from 
making a useful modification of the charter of an eleemosynary 
corporation, long after the death of all its founders; and, 
subsidiary to this, we have been taught the doctrine that an 
executed gift is a contract within the meaning of the Federal 


1 Fletcher v. Peck, 6 Crancli (U. S.), 87. 


682 


30 AMERICAN LAW REVIEW. 


constitution.^ We have seen the sovereign power of taxation 
bargained away by corrupt legislatures to private corporations, 
and future legislatures prohibited for all time from resuming the 
power.2 We have seen, under the name of preserving the inviola¬ 
bility of contracts, rights got by bribery from venal legislatures 
endowed with sanctity and immorality and placed forever beyond 
the reach of the people.^ We have seen useful and necessary 
revenue laws of the States, and of the United States,^ sus¬ 
pended and nullified. We have seen the executive officers of 
our governments, both Federal and State, subjected to compul¬ 
sory judicial process.^ We have seen corporations aggregate 
declared to be ‘‘ citizens,” within the meaning of the same 
instrument, for the purpose of enlarging the jurisdiction 
of the courts of the United States and seizing a portion of the 
jurisdiction rightfully belonging to the States.® We have even 
seen the Supreme Federal Tribunal arrogate to itself, with a 
general public acquiescence, the jurisdiction of deciding, between 
two contestants, which is the lawful Governor of one of the 
States: a question which, from its very nature, eludes Federal 
jurisdiction and control.^ 


These are some of the results of what may be called ‘ ‘ govern¬ 
ment by lawyers.” It is government by that department of the 
government which is composed exclusively of lawyers, and which 
arrives at its determinations exclusively by the aid of the lawyers. 


1 Dartmouth College v. Wood- 
worth, 4 Wheat. (U. S.) 517. 

2 state Bank v. Knoop, 16 How. 
(U. S.) 369, and the midnight brood 
that followed it. 

* Fletchers. Peck, 6 Cranch (U. S.), 
87; Dartmouth College v. Woodward, 
4 Wheat. (U. S.) 617. 

^ State Bank v. Knoop, supra; Pol¬ 
lock V. Farmers’ Loan &c. Co., supra. 

^ See United States ex rel. &c. v. 
Carlisle, 5 App. Cas. (D. C.), where 
the power of a local court of the Dis¬ 
trict of Columbia to issue a mandamus 
to the Secretary of the Treasury 
passed without challenge. 


® Louisville &c. R. Co. v. Letson, 2 
How. (U. S.) 497, and its successors. 
It is to be noted that Mr. Justice 
Daniel took the view that where one 
of the parties to a controversy in 
a court of the United States, is a cor¬ 
poration created by a State, “ this 
court can take no cognizance, by the 
constitution, of the acts, or rights, or 
pretensions of that corporation.” 
State Bank v. Knoop, 16 How. (U. S.) 
at p. 219, See, on this very peculiar 
judicial amendment of the constitu¬ 
tion, 29 Am. Law Rev. 864. 

^ Boyd V. Nebraska, 143 U. S. 136. 


GOVERNMENT BY LAWYERS. 


683 


It is not government by sovereign legislatures. It is not govern¬ 
ment by representatives of the people elected by them to make 
their laws. It is not government by an executive who proceeds, 
under the command of the constitution, to ‘‘ take care that the 
laws be faithfully executed,” ^ and who must resign his powers 
to the people at the expiration of four years. It is not what 
our British brethren who, since our separation from them, have 
advanced further in popular government than we have, are 
accustomed to designate by the name of “ responsible govern¬ 
ment.” On the contrary, it is the most irresponsible of all 
government. It is government by a body which is responsible 
to no one; for the national House of Kepresentatives has no 
time to impeach, nor has the Senate time to try an impeachment 
of a Federal judge; even if, in the things that I have enumer¬ 
ated, there could be found any ground of impeachment within 
the meaning of the constitution. Even in the time of Mr. Jeffer¬ 
son, when few of the remarkable advances in jurisdiction which 
I have enumerated had taken place, that far-seeing statesman, 
descanting upon the encroachments by the judicial upon the 
other branches of the government, declared again and again in his 
published letters that impeachment was not even a scare-crow.^ 
He saw the spectacle of the Federal judiciary, in the enlarge¬ 
ment of its own powers, ‘‘ advancing its noiseless step like a 
thief over the field of jurisdiction;” ^ proceeding by a steady 
process of sapping and mining; ^ its opinions “ huddled up in 
conclave;”® and he raised the alarm against the manifest 
encroachments of that branch of the government upon the 
others,— the only branch of the government totally out of 
touch with the people, in no wise responsible to them, or to any 
one for them; and he predicted that, unless those encroach- 


1 Const. U. S., Art. 2, § 3. 

2 Jefferson’s Letter to Mr, Ham" 
mond, and to Mr. Ritchie, 28 Am. Law 
Rev. 147, and to Mr. Barry, 28 Am. 
Law Rev. 148. 

3 Jefferson, Letter to Mr. Hammond, 
28 Am. Law Rev. 148. 

* The judiciary of the United 
States is the subtle corps of sappers 


and miners, constantly working under 
ground to undermine our confederated 
fabric.” Letter to Mr. Ritchie, 28 
Am. Law Rev. 147. 

s Letter to Mr. Ritchie, 28 Am. 
Law Rev. 147. “ The very idea of 
cooking up opinions in conclave 
begets suspicion,” etc. Letter to 
Judge Johnson, 28 Am. Law Rev. 149. 


684 


30 AMERICAN LAW REVIEW. 


ments should be resisted, all the powers of the government 
would ultimately be absorbed by the judiciary. Certainly gov¬ 
ernment by the Federal judiciary is not ‘‘ government by the 
people.’’ ^ It is not, as governments should be in a republic, 
government near the people. And it may well be doubted to 
what extent it is “ government/o?" the people.” 


It has not escaped attention, that the general trend of this 
irresponsible government, by lawyers, is in favor of the rich and 
powerful classes, and against the scattered and segregated peo¬ 
ple, The Dartmouth College decision was ostensibly rendered 
to protect the charter rights of a small college; and Daniel 
Webster shed tears when, in his argument of that celebrated 
case, referring to the college as his alma mater^ he suggested to 
the court that it was but a small college.^ It was rendered in 
favor of clamorous corporate interests, which, by the most 
notorious log-rolling and manipulation of the press, had pre¬ 
pared the way for it. The decision was so utterly opposed to 
the first conceptions of the meaning of the constitution that 
it is doubtful whether, if it could have been foreseen, the 
Federal compact could have been formed.^ The subsequent de- 


1 ^^A judiciary independent of a 
king or executive alone is a good 
thing; but independence of the will of 
the nation is a solecism, at least in a 
republican government.” Jefferson, 
Letter to Mr. Ritchie, 28 Am. Law 
Rev. 148. Contrast the views of Mr. 
Justice Brown on judicial independ¬ 
ence: 23 Am. Law Rev. 781. 

2 See Mr. Otis’ account of that inci¬ 
dent, taken from Lodge’s Life of Web¬ 
ster, 27 Am. Law Rev. 592. 

3 See 26 Am. Law Rev. 179. Com¬ 
pare the able review of the Dartmouth 
College case, by Alfred Russell, in 30 
Am. Law Rev. 321. Shirley’s Dart¬ 
mouth College Causes [St, Louis, Re¬ 
view Publishing Co.] is a history, by 
a man of extraordinary ability, of the 
whole litigation. Jefferson’s opinion 
of the doctrine of the case, in a letter 


to Governor Plumer, date July 21, 
1816 (before the decision of the U. S. 
Supreme Court had been rendered), 
will bear repetition: The idea that 
institutions established for the use of 
the nation cannot be touched or modi¬ 
fied, even to make them answer their 
end, because of rights gratuitously 
supposed in those employed to man¬ 
age the trust for the public, may per¬ 
haps be a salutary provision against 
the abuses of a monarch, but it is 
most absurd against the nation itself. 
Yet our lawyers and priests generally 
inculcate this doctrine, and suppose 
that preceding generations held the 
earth more freely than we do; had a 
right to impose laws on us, unalter¬ 
able by ourselves; and that we, in like 
manner, can make laws and impose 
burdens on future generations, which 


GOVERNMENT BY LAWYERS. 


685 


cisions of the court that one legislature could bargain away 
for all time, the right of taxation — the very right of a State 
to exist — were likewise rendered in the interests of incor¬ 
porated money and power. 

The Income Tax decision/ in which the court, by a bare 
majority of its judges, overruled two of its previous unanimous 
decisions, the first having been rendered at a time when two 
members of the late constitutional convention sat as judges in 
the court, was rendered in a suit obviously collusive, and at the 
beck of the wealthy and influential classes. Nor can anything, 
couched in decorous language, be said of that decision more 
severe than can be found in the opinions of the dissent¬ 
ing judges. By that decision five lawyers struck down 
the power of Congress to raise revenue by one of the 
means employed by all governments; a mode which might 
become absolutely essential to the existence of the nation in 
time of war with a great maritime power. Our judicial annals 
do not afford an instance of a more unpatriotic subserviency to 
the demands of the rich and powerful classes. Within a few 
months after it was rendered the country was treated to an 
object lesson of what its effects might be in case of war with 
England, which seemed possible, over the Venzuela question. 
If such a decision had been rendered in the midst of such a 
war — a thing which we cannot suppose possible — public 
opinion would have universally stamped the concurring judges, 
not as judges and patriots, but as marplots and traitors. The 
gross vice of the decision lies not in the fact, that it decided the 
income tax law to be unconstitutional, but in the fact that it 
assumed jurisdiction to decide the question, one way or the other. 
Beyond all question, the power of raising revenue, to provide for 
the ordinary expenses of government, or for the common defense, 
or for the general welfare of the United States, was intended to be 
lodged as a political matter, in the political and administrative 
departments of the government, and it was never intended that 
the judicial department should be allowed to interfere with it. 

they will have no right to alter; in fine, ^ Pollock v. Farmers’ Loan &c. Co., 
that the earth belongs to the dead, 157 U. S. 429; s. c. on rehearing, 168 
and not to the living.” U. S. 601. 


686 


30 AMERICAN LAW REVIEW. 


The Sugar Trust decision,^ in effect, denied the power of 
Congress to prevent all the corporations in the Union, which 
were engaged in the production of a particular article of food, and 
of prime necessity, from combining together into one organiza¬ 
tion, for the purpose alone of suppressing competition in selling, 
and thereby controlling the markets of that product in every 
State in the Union, for the scarcely candid reason that they were 
primarily engaged in manufacturing^ and not in interstate com¬ 
merce ; when in fact they were engaged, primarily, in selling, and 
manufacturing was merely a preparation for selling. 

In the Stanford case ^ it appeared that the United States, 
desiring to aid in the building of a transcontinental railway, 
agi’eed to lend its aid to certain co-adventurers, provided they 
should incorporate themselves under the laws of the State of 
California, and proceed, with the aid so furnished them, to build 
a section of road. The constitution and statute law of Califor¬ 
nia provided that the stockholders of corporations in that State, 
should be originally liable, each for his proportion of the debts 
of the corporation. It seemed the simplest of all legal propo¬ 
sitions that the liability so established against the stockholders 
would inure to the public, as well as to a private creditor. And 
yet three Federal courts in succession held, without any dissent, 
that this security did not inure to the benefit of the United 
States; and in this way struck down the rights of the United 
States in favor of the rankest of public criminals. These are 
but a few instances; it is to be regretted that the list could be 
greatly extended. 

Nor has it escaped attention that some decisions of that court, 
which are pointed to as landmarks of constitutional interpreta¬ 
tion and bulwarks of public right, have been rendered in the 
assistance of fraud, rascality, and criminality. The first judicial 
declaration that a public grant is a contract, and hence not sub¬ 
ject to legislative repeal under the constitution of the United 
States, was rendered in a case where a great public land grant 
has been procured from a legislature by direct and notorious 

1 United States v. E. C. Knight Co., 2 United States v. Stanford, 161 
156 U. S. 1. U. S. 412. 


GOVERNMENT BY LAWYERS. 


687 


bribery.^ The court having, in the same decision, held that 
legislative acts cannot be impeached for fraud, established the 
doctrine that the most important of all contracts, can neither be 
repealed by legislation, nor impeached for fraud; and thus 
public fraud, bribery, and corruption were surrounded with a 
halo of sanctity, and endowed with immortality. The much- 
vaiinted Slaughter House decision^ supported, under the guise 
of upholding the rights of the States, an odious monopoly in 
the hands of one of the most corrupt combinations that ever 
procured a great and exclusive franchise by bribing a negro 
legislature. It is equally unfortunate that the case of 
Kilbourn v. Thompson,^ to which I have already referred, in 
which, overruling its previous sound and wholesome decision,^ 
the court denied the power of the national House of Represent¬ 
atives to punish for contempt a witness who, without claiming 
any constitutional exemption, refused to answer questions pro¬ 
pounded to him by a committee of the House, and afterwards by 
the whole House, degrading that body to the position occupied 
by the Assembly of Newfoundland,® and other British Colo¬ 
nies ; and denying to it the right existing in the House of Com¬ 
mons of Great Britain from time immemorial. The result of 
the decision was to suppress a Congressional investigation into a 
fraudulent and corrupt combination, known as the “ Real Estate 


1 Fletcher v. Peck, 6 Cranch, 97. 

2 Slaughter House Cases, 16 Wall. 
(U. S.) 36. Mr. Justice Field, in his 
dissenting opinion, said: No one will 
deny that abstract justice lies in the 
position of the plaintiffs in error ” 
[meaning the butchers who resisted 
the monopoly]. Ibid., p. 86. Mr. 
Justice Bradley, in his dissenting 
opinion, said of the act of the Leg¬ 
islature of Louisiana creating the 
monopoly: ^^It is one of those ar¬ 
bitrary and unjust laws, made in the 
interest of a few scheming individuals, 
by which some of the Southern States 
have, during the past few years, been 
so deplorably oppressed and impover¬ 
ished. It seems to me strange that it 


can be viewed in any other light.” 
Ibid.y p. 120. Mr. Justice Swayne, in 
his dissenting opinion, said: “ A more 
flagrant and indefensible invasion of 
the rights of the many for the benefit 
of the few has not occurred in the 
legislative history of the country.” 
Ibid., p. 128. 

3 103 U. S. 168. 

4 Anderson v. Dunn, 6 Wheat. (U. 
S.) 204. 

^ The court rested its decision 
chiefly on the decision of the English 
Privy Council in Kielly v. Carson, 4 
Moore P. C. 63, thus limiting the 
power — not of the British House of 
Commons — but of the House of As¬ 
sembly of Newfoundland. 


688 


30 AMERICAN LAW REVIEW. 


Pool/^ formed in the District of Columbia, to make money out 
of public contracts. Nor has it escaped animadversion that it 
was the case of a Republican court curtailing the powers of a 
Democratic House of Representatives. Nor can one suppress 
amazement at the effrontery of a judicial court attempting to 
decide, over the heads of a House of a sovereign legislature, the 
proper scope of a legislative investigation, — a subject, from 
its very nature, beyond the conusance of any court of justice, 
especially of a petty local court like the Supreme Court of the 
District of Columbia, and, subject to the constitutional rights 
of the citizen, within the absolute discretion of the Houses 
of Congress. A decision of three Federal judges, at Circuit, 
smothered a Congressional investigation into the frauds of the 
incorporated criminals called the “Central Pacific Railroad 
Company,” on the specious pretense that a Congressional 
investigation was not a “ case ” within the meaning of the 
judiciary clause of the Federal constitution; ^ a doctrine which 
the Supreme Court of the United States has since been 
obliged, in substance, to overrule.^ In Stanford’s case,^ to 
which I have already alluded, the Supreme Court, in effect, 
exonerated the same public criminals from repaying to the gov¬ 
ernment the money which they had plundered from it. In the 
Counselman case^ the court struck down that clause of the 
Interstate Commerce Law, compelling officers of interstate 
transportation companies to testify concerning violations of the 
statute, and exonerating them from criminal prosecution by 
req^on of any disclosures made; holding that the bare possibil¬ 
ity that their testimony might furnish a clue, by means of which 
a detective might discover in them the commission of some 
other crime, protected them under the constitution. The sub¬ 
sequent statute, protecting the witness from prosecution for 
any similar offense, designed to afford a complete protection to 
him, was but recently sustained by a bare majority of the 

1 Re Pacific Railroad Commission, versing Re Interstate Commerce 

32 Fed. Rep. 241. Commission, 53 Fed. Rep. 476. 

2 Interstate Commerce Commis- S.412. 

sion V. Brimson, 154 U. S. 447; re- * Counselman v. Hitchcock, 142 U. 

S. 547. 


GOVERNIHENT BY LAWYERS. 


689 


court.^ Such decisions, though rendered by learned and 
upright judges, strike the lay mind as being too complacent 
toward corporate rascality, and support the now widely-prevailing 
belief that there is in this country too much constitutional law 
for rogues and criminals. 

When the constitution was framed, the new government which 
it created was not to go into existence until the constitution 
had been ratified by three-fourths of the States; nor could it 
be amended except with the consent of three-fourths of the 
States. English publicists have not failed to observe, again and 
again, that this has the effect of putting our government into a 
straight jacket. In the 106 years which have elapsed since the 
constitution went into effect, but fifteen amendments have been 
added to it. Twelve of these followed soon after the adoption of 
the original instrument, and the other three followed as the fruits 
of the great Civil War. The fourteenth of these amendments 
never was adopted in accordance with the requirements of the 
constitution. If we lay out of view the fact that several of the 
Southern State governments were under military coercion, it is 
to be observed that the ratification of the State of Ohio, which 
was necessary to complete the requisite three-fourths, was with¬ 
drawn before the quorum of three-fourths had been filled up. 
It then became a question whether a State could withdraw its 
ratification. It is believed to be a rule of law that, in making a 
multipartite contract, which requires the consent of a certain 
number before it becomes binding, any party can withdraw his 
consent before the requisite number of consents has been obtained. 
Nevertheless, Mr. Seward, as Secretary of State, decided that 
Ohio could not withdraw its ratification; and he accordingly 
issued his proclamation declaring the amendment ratified. 

I am using this instance to point out the extreme difficulty of 
amending the constitution m accordance with its own provisions. 
So great is this difficulty, and so great is the conservatism of the 
people in regard to any innovation upon that venerable instru¬ 
ment, that it may be regarded as hopeless to add any further 
amendments to it, however useful or necessary, by the consent 

1 Brown v. Walker, 161 U. S. 691. 

VOL. XXX. 44 


690 


30 AMERICAN LAW REVIEW. 


df the legislatures of three-fourths of the States, until some 
great public convulsion, or revolution, has prepared the public 
mind for it. How happy and proud, then, the legal profession 
must be, when they reflect upon the fact—for it is a fact — that 
their ingenuity affords an escape from this almost hopeless situ¬ 
ation ! The codes of ancient times were glossed over by an¬ 
notators to make them conform to subsequent conditions, until 
their original doctrines were scarcely recognizable; and the 
word “gloss” has come to signify an uncandid and fictitious, 
though possibly a necessary, interpretation. Just so the con¬ 
stitution of the United States is being amended, not by 
political action on the part of the people, but by unfaithful 
interpretations on the part of the Supreme Court, Thus, 
when it became necessary to build the constitution up by 
what is known as “ construction,” in those matters wherein, by 
reason of its generality, it was defective, the Supreme Court 
supplied the necessary amendments under the disguise of con¬ 
struing the instrument. For example, the word “ corporation,” 
is not found in that instrument, but the judicial power of the 
United States was extended to controversies between “ citizens ” 
of different States. But, as the practice of organizing private 
corporations for almost every purpose came into vogue, it was 
convenient to annex a judicial amendment to the constitution, 
making the word “ citizen,” as used therein, mean a corporation 
composed of many persons, not one of whose members might in 
fact be a citizen of the State granting the charter, but all of 
whom might be non-residents, or even aliens. This amendment, 
robbing as it did the State courts of a portion of their rightful 
jurisdiction over their own citizens, could not, it may be safely 
said, ever have been ratified by the legislatures of three-fourths 
of the States. On the other hand, the amendment having been 
added to the constitution by us lawyers, speaking through our 
judges, cannot be got out of it; because, in order to that end, 
three-fourths of the States must concur, and the consent of 
three-fourths of the States cannot be procured. The corpora¬ 
tion-ridden States would refuse their consent.^ 

1 The constitution has also been preserving its form while sacrificing its 
amended by mere political action,— substance. For example, nothing is 


GOVERNMENT BY LAWYERS. 


691 


The constitution guarantees the right of trial by jury in all 
cases of crime except impeachment. This has always been held 
to mean trial by jury as it existed at common law at the time 
wdien the constitution was framed. But we lawyers, acting 
through our Federal tribunals, finding the remedy by ordinary 
crimihal prosecutions before juries inadequate in cases of labor 
insurrections, have enlarged the equity powers of the courts of 
the United States by extending those powers to matters of 
crime, thus correspondingly curtailing the right of trial by jury, 
and successfully substituting a more summary and beneficial 
remedy called “government by injunction.” It is true that 
a national convention recently held by one of the leading polit¬ 
ical parties has denounced that form of government in strong 
terms. But nevertheless we lawyers, acting through that part 
of our judiciary which is not responsible to the people, have, by 
a useful amendment to the constitution, established it. That 
amendment cannot be repealed without the consent of three- 
fourths of the States, which consent can never be obtained. 
What, then, are the cavilers going to do about it? ^ 

I say, then, fellow-lawyers, let us not despair too much of the 
evils of a straight-jacket constitution. The Supreme Court 
has wisely prohibited the Congress from dispensing with the 
constitution, and has wisely taken to itself the power to amend 
it, and to dispense with acts of Congress impugning it. It is 
true that this involves a revival of the dispensing power, against 


more certain than that, in the scheme 
of electing a President and Vice-presi¬ 
dent by electors, it was intended that 
each State should choose a body of 
statesmen, w’ho should exercise their 
independent judgment in the selection 
of those magistrates; and the actual 
practice of the first forty years of 
the Republic conformed to this idea. 
Then the practice came into vogue of 
the political parties holding national 
conventions to name party candidates; 
and the electors chosen by the party 
in each State were no longer to exer¬ 
cise an independent judgment, but 
were placed under an implied pledge 


to vote for the candidate named by the 
party convention; a pledge which, to 
the honor of American politicians be it 
said, no elector has ever yet dared to 
violate. 

This paragraph was construed by 
some members of the Texas Bar Asso¬ 
ciation, who heard it, as an attack 
upon the decision of the Supreme Court 
of the United States in the Debs case 
(158 U. S. 564;. But the speaker ex¬ 
plained to them that he approved of 
that decision. See his views on Debs’ 
conspiracy in 28 Am. Law Rev. 630; 
29 Id. 138, and 29 Id. 756. 


692 


30 AMERICAN LAW REVIEW. 


which our English ancestors struggled so long and with ulti¬ 
mate success; but it revives it in the hands of us lawj^ers, 
albeit exerted through a non-elective judiciary, and not in the 
hands of military tyrants. Therefore a revival of it does not 
menace the liberties of the people. It is also true that, in the 
exercise of this power of amendment, the Supreme Federal 
tribunal takes upon itself the thankless office of superintending 
all the other departments of the government, of correcting their 
errors, and of keeping them in the straight and narrow path 
marked out by the constitution. In the exercise of this power, 
the Supreme Court can correct mischiefs that the President 
cannot. For example, the President cannot, under the constitu¬ 
tion, veto a single unconstitutional item in an appropriation bill 
without vetoing the whole bill; but, according to the reasoning 
of a recent decision, the Supreme Court can, though it has 
not yet seen fit to exercise the power. The President cannot 
veto a part of a law; but, as it is a settled maxim of constitu¬ 
tional law that a statute may be void in part and valid in part, the 
Supreme Court can veto the bad part of it, while leaving the 
good part stand. 

The power to amend that venerable instrument really lies then 
in the hands of us lawyers, exerting our power and influence 
before and through a tribunal in which responsibility to the 
people is unknown; where the right of petition on the part of 
the people does not exist; where we lawyers alone are heard, 
and where the court exercises its power of amendment according 
to the accidents of lawsuits between private parties in real or 
collusive litigations. The constitution was of our building. Its 
corner-stones were laid by lawyers. Every arch was rounded, 
every key-stone set in place by them; every stone in the magni¬ 
ficent structure was lifted into place by the hand of some legal 
architect. We lawyers built this monumental temple to a well 
ordered liberty. 

“Not Babylon 
Nor great Alcairo such magnificence 
. Equalled in their glories, to enshrine 
Belus or Serapis, their gods, or seat 
Their kings, when Egypt with Assyria strove 
In wealth and luxury. The ascending pile 


GOVERNMENT BY LAWYERS. 


693 


Stood, fixed its stately height, and straight the doors 
Opening their brazen folds, discover wide 
Within her ample spaces o’er the smooth 
And level pavement. From the arched roof 
Pendent by subtle magic, many a row 
Of starry lamps and blazing cressets, fed 
With naptha and asphaltus, yielded light 
As from the sky. The hasty multitude 
Admiring entered, and the work some praised, 

And some the architect.” 

We lawyers were its architects; we are its guardians; we are 
its amenclers and its perfecters. Time has made rents in its walls: 
we will close them up. Its stately battlements, which kiss the 
clouds, reveal their summits still ragged and incomplete: we 
will lift them to more stately architectural proportions and will 
then perfect and finish them. We will preserve the sacred 
temple from violence and spoliation; and we will graciously 
permit our fellow-citizens who are not lawyers — those of the 
humbler and less useful callings, to come and sit with us in its 
shade. 

But it is barely possible that the people will, in time, get tired 
of being governed by us lawyers; at least, they may become 
tired of the kind of government by lawyers of which I have 
spoken. The intelligence of the people, as compared with the 
lawyers, is slowly rising, and, in the older States, non-lawyers 
are more and more participating in public affairs. In England 
the greatest political leaders are by no means lawyers: we must 
exclude the Palmerstons, the Beaconsfields, the Gladstones, and 
the Salisburys, from the ranks of the legal profession. If, as 
Mr. Jefferson believed, the encroachments of the Federal 
Supreme Court, some of which I have hastily sketched, threaten 
the gradual centralization of all the powers of government in the 
hands of the one non-elective branch of the Government, the 
remedy is easily in the hands of the people. The judiciary 
possesses only a moral power. It is even without power to exe¬ 
cute its own process: the marshals of its courts are appointed by 
the President. Whenever its pretensions have been seriously 
resisted, they have gone down. Whenever the Supreme Court 
endeavors to impose its authority upon the Federal Executive the 


30 AMERICAN LAW REVIEW. 


604 

answer of the President will be that he too is sworn to support 
the constitution; that it is a part of the constitution that he 
shall “take care that the laws be' faithfully executed,” ^ and 
that he is not sworn to take care that the decisions of the 
Supreme Court be faithfully executed. The obligation of his 
official oath imposes upon him a duty, in the execution of his 
office, of determining for himself what are the laws to be faith¬ 
fully executed by him, and what are to be rejected by him as not 
being laws. For the discharge of this duty, he is, under the 
constitution, answerable on his oath of office and on his con¬ 
science; and the judgments of the Supreme Court are therefore 
not binding upon him, but are persuasive merely. The Federal 
tribunals, when attempting to interfere with and restrain execu¬ 
tive action, were successfully resisted by Jefferson, by Jackson, 
and by Lincoln.^ If the people should ever conclude with 
Jefferson that the Federal judiciary, as at present constituted, 
is dangerous to public liberty, they can, by a mere act of Con¬ 
gress, abolish every inferior Federal court, all being the mere 
creatures of Congress. If, in addition to this, they should con¬ 
clude that the Federal Supreme Court, in setting aside the laws 


1 Const. U. S., Art. 2, § 3. 

2 See Ex parte Merryman, Taney 
Dec. 246. In his first Inaugural Ad¬ 
dress (March 4, 1861), Mr. Lincoln 
said: ‘^I do not forget the position 
assumed by some that constitutional 
questions are to be decided by the 
Supreme Court, nor do I deny that 
such decisions must be binding in any 
case upon the parties to a suit, as to 
the object of that suit, while they are 
also entitled to a very high respect 
and consideration in all parallel cases 
by all other departments of the gov¬ 
ernment; and while it is obviously 
possible that such decision may be 
erroneous in any given case, still the 
evil effect following it, being limited 
to that particular case, with the 
chance that it may be overruled and 
never become a precedent for other 
cases, can better be borne than could 


the evils of a different practice. At 
the same time, the candid citizen must 
confess that if the policy of the 
government upon the vital questions 
affecting the whole people is to be 
irrevocably fixed by the decisions of 
the Supreme Court, the instant they 
are made, as in ordinary litigation 
between parties in personal actions, 
the people will have ceased to be their 
own masters, unless having to that 
extent practically resigned their gov¬ 
ernment into the hands of that emi¬ 
nent tribunal. Nor is there in this 
view any assault upon the court or 
the judges. It is a duty from which 
they may not shrink, to decide cases 
properly brought before them; and it 
is no fault of theirs if others seek to 
turn their decisions into political pur¬ 
poses,” 


GOVERNMENT BY LAWYERS. 


695 


of the States, is infringing upon their reserved rights, they can 
deprive the court of that power by repealing the 25th section of 
the Judiciary Act, which allows a writ of error from the Supreme 
Court of the United States to the highest courts of the States.^ 
Nay more: the entire appellate jurisdiction of the Supreme 
Court is established, by the language of the constitution itself, 
“ both as to law and fact, with such exceptions and under such 
regulations as the Congress shall make.’’^ Whenever the 
people get tired of the manner in which it exercises its appellate 
jurisdiction, they can, through their Congress, curtail that juris¬ 
diction by such exceptions ’’ as they may see fit to prescribe, 
and by such “ regulations ” as they may see fit to impose. 

I do not expect that any of these measures will ever become 
necessary. I hope that it will not be inferred, from anything I 
have said, that I advocate such extreme measures. I merely 
refer to them as powers held by the people among their other 
reserved powers, to be exercised by them when an emergency 
shall arise, for the protection of their liberties. Happily, not¬ 
withstanding the exceptions already referred to, the decisions of 
the Federal Supreme Court on public questions have generally 
commended themselves to public favor. Nor have judicious 
minds failed to observe the great benefit, in a popular govern¬ 
ment, which accrues from having a tribunal, which, uninfluenced 
by the passions of the hour, can calmly decide great public 
questions, — not because it always decides them rightly, but 
because of the necessity of having them decided. Nor will any 
impartial student of our constitutional history, even though he 
admit all that I have said concerning certain manifest tendencies 
of the court, and even though he agree with all my objections 
to certain of its decisions, fail to concede the general beneficence 
of its work. Where would the constitution have been, if the 
Supreme Court, under the leadership of Marshall, had not 
asserted the power to uphold and preserve it? What sort of 

1 It will be recalled that a bill to without distinguished sponsors: both 
repeal this section was introduced in Henry Clay and James K. Polk voted 
the national House of Representatives in favor of it. 

in the year 1831, and was defeated by ^ Const. U. S., Art. 3, § 2, Cause 2. 
a vote of 137 to 51. But it was not 


696 


30 AMERICAN LAW REVIEW. 


government would we now have if its exposition had been finallj 
committed to the uncertain action of bare popular majorities? 
Balancing the labors of Marshall against those of Jefferson; the 
one in some sense the founder, the other the perfecter of our 
system of government, — two men of the most opposite 
schools of political thinking, who stood towards each other 
even in personal antagonism, — and I do not know to 
which we ought to accord the greater honor. If, without 
moving laughter, I could imagine myself at so lofty a pinnacle 
as that of either, I confess that I would rather have been the 
author of the Declaration of Independence than of the Dartmouth 
College decision; the author of the Statute of Virginia for 
Eeligious Liberty, than of the decision in Fletcher v. Peck.^ 
Nor do I know whether to accord the greater importance to the 
oft-repeated doctrine of Jefferson that the right of resisting 
tyranny and of overthrowing tyrannical government is always 
reserved to the people, and that revolutions are sometimes, nay 
frequently, necessary to liberty — a declaration which is embod¬ 
ied in the Bill of Eights of nearly all our State constitutions; or 
to the declarations of Marshall that the Government of the 
United States, of necessity, exercises its powers directly upon 
the people, throughout the whole extent of our great country, 
and not mediately through the States, nor with the aid, nor even 
consent of the State governments; that, within the scope of 
its granted powers, it is necessarily supreme; and that it is 
entitled, by a just implication, to exercise all powers which are 
fairly necessary to carry into effect those powers expressly 
gi’anted. I scarcely know which of these opposing principles — 
opposing, yet reconcilable — has played the greater part in the 
phenomenal growth of our country. The doctrine of Jefferson 
has upheld individual liberty, developed individual strength, and 
enlarged individual manhood. The doctrine of Marshall has 
given us a counti’y, and has given to each man the reason¬ 
able hope that he will be allowed in peace to enjoy the rewards 
of his honest industry. Nor ought we to forget that these 
enunciations were not the enunciations of mere doctrinaires, 


1 6 Cranch, 87. 


GOVERNMENT BY LAWYERS. 


697 


but the enunciations of two great lawyers. If put to my oath 
as to a choice between them, I confess that I might be obliged 
to say with Jefferson that I would rather have liberty without 
government than government without liberty. The loose atoms 
of the thirteen colonies were first crystallized around the sword 
of Washington.^ They were next baptized in fire and melted 
together in a single crucible in the War of 1812, our second 
War of Independence. The ingot thus produced was moulded 
into symmetry by the plastic skill of Marshall and his associ¬ 
ates. And that court, notwithstanding the tendencies which I 
have pointed out, is still, in general, maintaining, in strength 
and symmetry, the colossal fabric created by the constitution,— 
“ an indestructible union of indestructible States.’’ 

But notwithstanding this concession, which I freely and 
heartily make, the dangerous tendencies and extravagant pre¬ 
tensions of the coui*t, which I have pointed out, ought not to be 
minimized, but ought to be resisted. That resistance ought 
not to take place, as advised by Jefferson, by meeting the 
invaders foot to foot,”^ but it ought to take place under the 
wise and moderate guidance of the legal profession. But the 
danger is that the people do not always so act. In popular 
governments evils are often borne with stolid patience until a 
culminating point is reached, when the people burst into a sud¬ 
den frenzy and redress their grievances by violent and extreme 
measures, and even tear down the fabric of government itself;— 

When the crowd, 

Maddened with centuries of drouth, are loud, 

And trample on each other to obtain 
The cup that brings oblivion of a chain 
Heavy and sore, in which, long yoked, they plowed 
The sand. Or if there sprung the yellow grain, 

’Twas not for them: their necks were too much bowed, 

And their dead palates chewed the cud of pain.” 

There is danger, real danger, that the people will see at one 
sweeping glance, that all the powers of their governments, Fed- 

1 “ Crystallizing them 2 Jefferson, Letter to Mr. Thweat, 

Around a single will’s unpliant stem, 28 Am. Law Rev. 148. 

And making purpose of dissension 
rash.” — Lowell. 


698 


30 AMERICAN LAW REVIEW. 


eral and State, lie at the feet of us lawyers, that is to say, at 
the feet of a judicial oligarchy; that those powers are being 
steadily exercised in behalf of the wealthy and powerful classes, 
and to the prejudice of the scattered and segregated people; 
that the power thus seized includes the power of amending the 
constitution; the power of superintending the action, not merely 
of Congress, but also of the State legislatures; the power of 
degi’ading the powers of the two houses of Congress, in making 
those investigations which they may deem necessary to wise 
legislation, to the powers which an English court has ascribed 
to British colonial legislatures ; the power of superintending the 
judiciary of the States, of annulling their judgments, and of 
commanding them what judgments to render; the power of 
denying to Congress the power to raise revenue by a method 
employed by all governments; making the fundamental sovereign 
powers of government, such as the power of taxation, the subject 
of mere barter between corrupt legislatures and private adven¬ 
turers; holding that a venal legislature, temporarily invested 
with power, may corruptly bargain away those essential attri¬ 
butes of sovereignty and for all time; tha^ corporate franchises 
bought from corrupt legislatures are sanctified and placed for¬ 
ever beyond recall by the people; that great trusts and combina¬ 
tions may place their yokes upon the necks of people of theUnited 
States, who must groan forever under the weight, without remedy 
and without hope; that trial by jury and the ordinary criminal 
justice of the States, which ought to be kept near the people, 
are to be set aside, and Federal court injunctions substituted 
therefor; that those injunctions extend to preventing laboring 
men from quitting their employment, although they are liable 
to be discharged by their employers at any hour, thus creating 
and perpetuating a state of slavery. There is danger that the 
people will see these things all at once; see their enrobed judges 
doing their thinking on the side of the rich and powerful; see 
them look with solemn cynicism upon the suiferings of the 
masses, nor heed the earthquake when it begins to rock beneath 
their feet; see them present a spectacle not unlike that of 
Nero fiddling while Rome burns. There is danger that the 
people will see all this at one sudden glance, and that the 


GOVERNMENT BY LAWYERS. 


699 


furies will then break loose, and that all hell will ride on their 
wings. 

A few days ago, in a great audience chamber in Chicago, the 
representatives of a great political party were assembled from 
every State and Territory of the Union, to discuss great ques¬ 
tions and to consider great abuses, including some of those which 
I have mentioned. A young, smooth-shaven man, apparently 
just out of college, ascended the platform to close a memorable 
debate. When he faced the great audience it rocked with 
applause. But when he lifted his hand to speak 

“ His look 

Drew audience and attention still as night, 

Or Summer’s noon-tide air.” 

As he ascended each grand climax, a tempest broke forth from 
twenty thousand throats, “ like ocean warring ’gainst a rocky 
isle.” And then a wave of his hand, stilling the uproar, almost 
recalled the miracle of Christ stilling the tempest. But this 
tempest was stilled only to burst forth at each succeeding climax 
of the speaker, and in like manner to be stilled again. That 
hour brought back into our practical and prosaic age the troubles 
and the glories of the antique world. It made us feel the 
secret force of the “ grand troublous life antique,” and see,— 

Under the rock stand of Demosthenes, 

Unstable Athens heave her noisy seas.”i 

In that hour, he became the leader of a great party; perhaps 
the hope of a great people. The man whose voice raised that 
tempest and whose hand stilled it, was a member of the great, 
honorable, and powerful profession of the law. Was that popu¬ 
lar tempest a prelude to some greater popular tempest which is 
yet to break upon us? If so, will the legal profession, as 
they have so often done in the past, guide the ship of State 
safely through that tempest, or will they drift hopelessly alpng 
with it, and be ingulfed in it? 


1 This passage was badly quoted from memory. 


7Q0 


30 AMERICAN LAW REVIEW. 


At that same hour, a few hundred miles away, seated in his 
unpretentious residence in a small city, surrounded by an aged 
mother, the wife of his youth, and the friends and neighbors 
who had witnessed his early successes at the bar and his envi¬ 
able political career, — sat another lawyer. He heard, through 
that wonderful instrument the long distance telephone, the peals 
of applause which greeted the young orator in the distant con¬ 
vention, like the roar of a distant ocean after storm. He 
heard it without disdain, perhaps with a touch of admiration, 
certainly without fear. He, too, had been chosen the leader of 
a great party, perhaps the hope of a great people. Both of 
these great leaders, while differing vitally on public questions, 
are patriotic and lofty in character; sincere in their convictions 
of public duty; firm in their adhesion to principle; tender, 
chivalric and faithful toward women; truthful and honorable in 
their public and private lives. Both are members of the legal 
profession. It is the office of that profession, and of the free 
institutions which that profession has fostered, to produce such 
men. Whichever shall be chosen the chief magistrate of the 
American people will illustrate, in that great office, the lofty 
ideal of a man that “ can rule and dare not lie.” 

What I have said will fail entirely of its intended effect if it 
does not bring you, my fellow-lawyers, to reflect how great the 
power, how important the trust, which your merits on the one 
hand, and popular consent, custom, and acquiescence on the 
other, have reposed in our profession. I magnify that profes¬ 
sion. I exult that I am a member of it. But at the same time 
I trust that I feel an adequate sense of the responsibilities which 
attach to that membership. It is said that the legal profession 
is declining in power and influence ; that the practice of the law 
is passing into the hands of corporations,— of collection compa¬ 
nies, security companies, trust companies, and the like. I know 
not how that may be. It seems to me that, in our complicated 
modern business-life, there is greater and greater need for good 
lawyers. Certain it is that our complicated system of federative 
government makes “government by lawyers ” imperative, and 
concedes to our profession the principal offices of statesmanship, 
the noblest work that has yet been committed to man. Whether, 


GOVERNMENT BY LAWYERS. 


701 


as a profession, we maintain our present proud pre-eminence 
rests primarily with ourselves. If we sink to the mere pursuit 
of sordid gain, the leadership of the people and the offices of the 
government will pass into other hands. If we remain in the 
future, what we have been in the past, the tribunes of the people 
and the champions of public right, we shall retain that natural 
ascendency in government, so long enjoyed, so honorable to us, 
and so beneficial to the State. 





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